Tech Law Journal Daily E-Mail Alert
October 20, 2010, Alert No. 2,143.
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Representatives Markey and Barton Write Facebook About User Privacy

10/18. Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) sent a letter [PDF] to Mark Zuckerberg, CEO of Facebook, that propounds interrogatories and requests documents regarding reports that "third party applications gathered and transmitted personally identifiable information about Facebook users and those users' friends."

The two also stated that "Given the number of current users, the rate at which that number grows worldwide, and the age range of Facebook users, combined with the amount and the nature of information these users place in Facebook's trust, this series of breaches of consumer privacy is a cause for concern."

They ask how many users were impacted, what information was transmitted, when did Facebook learn of the breaches, and what notice it then provided to users.

They also ask about data breaches affecting minors, and involving "personal financial or medical data".

They also ask whether there were similar breaches in the past, and about Facebook's procedures to detect and prevent future breaches.

The two also ask for copies of "any agreements between Facebook and its third party application developers".

The two request a response by October 27, 2010. See also, Rep. Barton's release and Rep. Markey's release.

Rep. Joe BartonRep. Barton (at left) is the ranking Republican on the House Commerce Committee (HCC) which has jurisdiction over most pending privacy related bills.

He is a cosponsor of HR 2221 [LOC | WW], the "Data Accountability and Trust Act", which is also known by the name of its sponsor, Rep. Bobby Rush (D-IL).

Rep. Bobby RushRep. Rush (at right) stated in a release on October 7, 2010, that "1) far too many companies that collect and use consumers' personal information have not dealt in a fair and above board fashion with consumers about the types of personal information they are collecting, how they are using that data, and who they are sharing that data with; 2) most consumers are powerless to control, in any meaningful way, how and to which parties their personal information and data should flow; and 3) there were far too many instances in which the flow of that data defied consumers' reasonable expectations about how that data might be used and shared."

Rep. Barton and Rep. Markey wrote this letter after the Wall Street Journal published an article by Emily Steel and Geoffrey Fowlder on October 18, 2010, titled "Facebook in Privacy Breach".

Pending Privacy Bills

10/18. The Congress adjourned for the November elections without passing a privacy bill. However, as in prior Congresses, legislators and committees have worked on bills in the 111th Congress.

One key bill is HR 2221 [LOC | WW], the "Data Accountability and Trust Act". Rep. Bobby Rush (D-IL) introduced this bill on April 30, 2009. The House Commerce Committee's (HCC) Subcommittee on Commerce, Trade and Consumer Protection (SCTCP), which is chaired by Rep. Rush, held a hearing on May 5, 2009. The Subcommittee amended and approved this bill on June 3, 2009. See, story titled "House Commerce Subcommittee Marks Up Data Accountability and Trust Act" in TLJ Daily E-Mail Alert No. 1,948, June 4, 2009.

The HCC amended and approved this bill on September 30, 2009. The House passed this bill by voice vote on December 8, 2009.

On July 19, 2010, Rep. Rush introduced HR 5777 [LOC | WW], the "Building Effective Strategies To Promote Responsibility Accountability Choice Transparency Innovation Consumer Expectations and Safeguards Act" or "BEST PRACTICES Act".

The Senate has not passed either HR 2221 or HR 5777. However, the Senate Commerce Committee (SCC) held a hearing on its version of the bills, S 3742 [LOC | WW], also titled the "Data Accountability and Trust Act", on September 22, 2010.

On October 4, 2010, Microsoft, eBay and and Intel sent a letter [PDF] to Rep. Rush and Rep. Ed Whitfield (R-GA), the ranking Republican on the SCTCP, stating that they support HR 5777. However, the three companies added that "We recommend that the provision creating a private right of action be removed, as it would create unnecessary litigation costs and uncertainty for businesses, but would not have a corresponding benefit to consumer privacy."

There is also the discussion draft [27 pages in PDF] of a bill of Rep. Rick Boucher (D-VA) and Rep. Cliff Stearns (R-FL). The two released this draft on May 4, 2010. See, stories titled "Rep. Boucher and Rep. Stearns Release Discussion Draft of Privacy Bill", "Summary of Discussion Draft of Boucher Stearns Privacy Bill", and "Commentary: Implications of the Boucher Stearns Privacy Bill for the First Amendment and News Media" in TLJ Daily E-Mail Alert No. 2,082, May 5, 2010.

See also, S 139 [LOC | WW], the "Data Breach Notification Act", introduced by Sen. Dianne Feinstein (D-CA) on January 6, 2009, and approved by the Senate Judiciary Committee (SJC) on November 5, 2009. It focuses solely on data breaches. The companion bill in the House is HR 6236 [LOC | WW], also titled the "Data Breach Notification Act". Rep. Adam Schiff (D-CA) introduced this bill on September 28, 2010. See, Rep. Schiff's release.

And see, S 1490 [LOC | WW], the "Personal Data Privacy and Security Act of 2009", sponsored by Sen. Patrick Leahy (D-VT), and approved by the SJC on November 5, 2009.

Holder Seeks IP Enforcement Assistance in PRC

10/18. Attorney General Eric Holder gave a speech at the International Intellectual Property Summit in Hong Kong. He said that "Not every country, not every organization has done enough."

He mostly talked about the evils of counterfeiting, piracy and theft of intellectual property (IP), and what the U.S. is doing about it. However, he also requested the assistance and cooperation of other nations.

Eric HolderHolder (at right) said that "Following this conference, I will travel to Beijing, where I look forward to meeting with my counterparts and other officials to discuss how we can build on our nations' bilateral enforcement efforts through the Intellectual Property Working Group of the U.S.-China Joint Liaison Group for Law Enforcement Cooperation."

He also stated that "I will continue to seek out and seize opportunities to foster stronger relationships, and greater cooperation, among international law enforcement agencies. But I also know that, without your help -- and until every nation makes a commitment, and takes action, to ensure aggressive IP enforcement -- we will not solve the challenges that now bring us together."

DHS and DOD Sign Cyber Security Agreement

10/13. Janet Napolitano (Secretary of Homeland Security) and Robert Gates (Secretary of Defense) signed a document [5 pages in PDF] titled "Memorandum of Agreement between the Department of Homeland Security and Department of Defense Regarding Cybersecurity".

Napolitano signed on September 27, 2010. Gates signed on September 24, 2010. The Department of Homeland Security (DHS) and Department of Defense (DOD) released the document on October 13, 2010.

This document states that its purpose is "to set forth terms by which DHS and DoD will provide personnel, equipment, and facilities in order to increase interdepartmental collaboration in strategic planning for the Nation's cybersecurity, mutual support for cybersecurity capabilities development, and synchronization of current operational cybersecurity mission activities."

People and Appointments

10/19. Paul Dawes, a former partner in the Silicon Valley office of the law firm of Latham & Watkins (LW), and former head of LW's Mergers and Acquisition Litigation Group, joined the Board of Directors of the Washington DC based Technology Policy Institute (TPI).

10/18. The Department of Commerce's (DOC) Bureau of Industry and Security (BIS) published a notice in the Federal Register that announces the members of its Senior Executive Service (SES) Performance Review Board: Michael Levitt, Daniel Hill, Matthew Borman, and Gay Shrum. See, Federal Register, October 18, 2010, Vol. 75, No. 200, at Page 63813.

10/14. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that announces the members of its Senior Executive Service (SES) Performance Review Board: Sharon Barner, Patricia Richter, Robert Stoll, Lynne Beresford, Anthony Scardino, John Owens, Bernard Knight, Deborah Cohn, and Margaret Focarino. See, Federal Register, October 14, 2010, Vol. 75, No. 198, at Page 63147.

10/14. Federal Communications Commission (FCC) Chairman Julius Genachowski announced that Sharrese Smith, his Legal Advisor for media, consumer and enforcement issues, is going on maternity leave, and that "we are holding a spot for you". He named Marilyn Sonn, of the FCC's Office of General Counsel's (OGC) Administrative Law Division, to substitute for Smith.

Jennifer Schneider10/14. Federal Communications Commission (FCC) Commissioner Michael Copps announced that Jennifer Schneider (at right) is leaving his office, and that Margaret McCarthy has just joined his office to replace Schneider. Schneider has been his Legal Advisor for broadband, wireline and universal service issues. She has also worked for Rep. Rick Boucher (D-VA). She will work for Frontier Communications. McCarthy previously worked for Sen. Byron Dorgan (D-ND), who is not seeking re-election in November. She has also worked at the National Telecommunications and Information Administration (NTIA) and for the Brookings Institution.

10/14. Federal Communications Commission (FCC) Commissioner Robert McDowell announced that Justin Ross (Howard University law school) and Tom Curtin (Catholic University law school) have joined his office as law clerks and that Toni McGowan has joined his office as Confidential Assistant; she substitutes for Brigid Calamis, who is on maternity leave.

10/14. Federal Communications Commission (FCC) Commissioner Meredith Baker announced that Kari Amstutz joined her office as Confidential Assistant, and that Tasha Kinney joined her office as Staff Assistant.

10/14. The Federal Communications Commission (FCC) hired Henning Schulzrinne as an Engineering Fellow in the Public Safety and Homeland Security Bureau (PSHSB). He previously was a professor in the Department of Electrical Engineering at Columbia University. See, FCC release.

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In This Issue
This issue contains the following items:
  Representatives Markey and Barton Write Facebook About User Privacy
  Pending Privacy Bills
  Holder Seeks IP Enforcement Assistance in PRC
  DHS and DOD Sign Cyber Security Agreement
  People and Appointments
Washington Tech Calendar
New items are highlighted in red.
Wednesday, October 20

The House is in recess until November 15.

The Senate is in recess until November 12, except for pro forma sessions.

8:30 AM - 1:30 PM. The President's Committee on the National Medal of Science will hold a closed meeting. See, notice in the Federal Register, October 5, 2010, Vol. 75, No. 192, at Page 61520. Location: Hilton Arlington Hotel, 950 North Stafford Street, Arlington, VA.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Wireline Committee will host a brown bag lunch titled "Hot Topics in Universal Service Compliance and Enforcement". The speakers will be Tamar Finn (Bingham McCutchen), Jonathan Marashlian (Helein & Marashlian), and David Solomon (Wilkinson Barker Knauer). Location: Wiltshire & Grannis, 1200 18th St., NW.

6:00 - 9:15 PM. The DC Bar Association will host a panel discussion titled "Open Source Licensing Fundamentals for Lawyers". The speakers will be Victoria Hall, Daniel Berlin (Google), and John Westermeier (Finnegan Henderson). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Day one of a two day event hosted by TechAmerica titled "2010 Vision Conference". Location: Waterford Conference Center, Springfield, VA.

Thursday, October 21

8:30 AM - 5:00 PM. Day one of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). This meeting will be held on site, and by teleconference. See, notice in the Federal Register, October 12, 2010, Vol. 75, No. 196, at Pages 62508-62509. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

10:00 AM - 2:45 PM. The Federal Communications Commission (FCC) will host an event titled "Spectrum Summit". See, notice and agenda. The FCC will webcast this event. FCC Chairman Julius Genachowski, Ruth Milkman (Chief of the FCC's Wireless Telecommunications Bureau), and John Leibovitz (Deputy Chief of the WTB) will give opening remarks. At 10:40 AM there will be a panel titled "Economic Imperative for New Broadband Spectrum". The speakers will be Simon Flannery (Morgan Stanley), Peggy Johnson (Qualcomm), Liam Quinn (Dell), Neville Ray (T-Mobile USA) and Jason Furman (National Economic Council). The lunch speakers will be FCC Commissioner Meredith Baker and Aneesh Chopra (CTO in the Executive Office of the President). At 1:00 PM, FCC Commissioner Robert McDowell will speak. At 1:10 PM there will be a panel titled "Policy Solutions to Spectrum Demand". The speakers will be Danny Sepulveda (Office of Sen. John Kerry (D-MA)), Amy Levine (House Commerce Committee staff), Peter Pitsch (Intel), John Chapin (MIT), Mary Brown (Cisco Systems), Jonathan Blake (Covington & Burling), and Tom Wheeler (Core Capital Partners). Location: FCC, Commission Meeting Room.

12:00 NOON - 1:15 PM. The American Bar Association's (ABA) will host a teleconferenced panel discussion titled "Can You Afford to Ignore Social Media? How to Market Your Mediation Practice in 2010". See, notice. Prices vary. CLE credits. The deadline to register is October 18.

12:00 NOON The Federal Communications Bar Association (FCBA) will host a lunch. The speaker will be Lawrence Strickling, head of the National Telecommunications and Information Administration (NTIA). Prices vary. Registrations and cancellations are due by 12:00 NOON on October 19. Location: Mayflower Hotel, 1127 Connecticut Ave., NW.

12:30 - 1:30 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Representing Third Party Clients Subject to an Antitrust Agency's Formal Information Request". The speakers will be Matthew Bester (DOJ Antitrust Division), Eric Enson (Jones Day), Sandeep Joshi (Torys), and Carla Hine (McDermott Will & Emery). See, notice. Free.

2:40 PM. The Federal Trade Commission's (FTC) Bureau of Economics will host a presentation titled "The Democratization of Research and Development". The speakers will be Bob Hunt (Federal Reserve Bank of Philadelphia) and Leonard Nakamura (FRB Philadelphia). For more information, contact Loren Smith at lsmith2 at ftc dot gov or Tammy John at tjohn at ftc dot gov. Location: ground floor Conference Center, 601 New Jersey Ave., NW.

Day two of a two day event hosted by TechAmerica titled "2010 Vision Conference". Location: Waterford Conference Center, Springfield, VA.

Day one of a three day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA 2010 Annual Meeting". See, conference brochure and schedule [PDF]. Location: Marriott Wardman Park.

Friday, October 22

8:30 - 10:45 AM. Day two of a two day partially closed meeting of the Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Emerging Technology and Research Advisory Committee (ETRAC). This meeting will be held on site, and by teleconference. See, notice in the Federal Register, October 12, 2010, Vol. 75, No. 196, at Pages 62508-62509. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

9:00 AM - 12:00 NOON. The Technology Policy Institute (TPI) will host a conference titled "Antitrust and the Dynamics of Competition in High-Tech Industries". See, notice. Location: Polaris Suite, Ronald Reagan Building and International Trade Center.

9:30 AM - 5:00 PM. The Federal Communications Commission's (FCC) North American Numbering Council (NANC) will meet. See, notice in the Federal Register, October 4, 2010, Vol. 75, No. 191, Page 61140-61141. Location: FCC, Room TW-C305, 445 12th St., SW.

12:15 - 1:45 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch regarding the Federal Communications Commission's (FCC) data systems. Location: Sidley Austin, 1501 K St., NW.

Day two of a three day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA 2010 Annual Meeting". See, conference brochure and schedule [PDF]. Location: Marriott Wardman Park.

Saturday, October 23

Day three of a three day event hosted by the American Intellectual Property Law Association (AIPLA) titled "AIPLA 2010 Annual Meeting". See, conference brochure and schedule [PDF]. Location: Marriott Wardman Park.

Monday, October 25

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) [79 pages in PDF] regarding expanding the FCC's disability access technology mandates. The FCC adopted and released this item on August 5, 2010. It is FCC 10-145 in WT Docket No. 07-250. See, notice in the Federal Register, September 8, 2010, Vol. 75, No. 173, at Pages 54546-54560, and story titled "FCC Adopts Disability Access Policy Statement, Order, and NPRM" in TLJ Daily E-Mail Alert No. 2,120, August 6, 2010. See also, S 3304 [LOC | WW], previously titled the "Equal Access to 21st Century Communications Act", and then S 3828 [LOC | WW], the "Twenty-First Century Communications and Video Accessibility Act of 2010", signed into law on October 8, 2010. The FCC published a second notice in the Federal Register requesting comments on the effects of this Act, if any, on this proceeding. See, Federal Register, October 18, 2010, Vol. 75, No. 200, at Pages 63764-63766.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking and Notice of Inquiry [102 pages in PDF] regarding the use of microwave for wireless backhaul. The FCC adopted and released this item on August 5, 2010. It is FCC 10-146 in WT Docket Nos. 10-153, 09-106, and 07-121. See, story titled "FCC Adopts Wireless Backhaul NPRM and NOI" in TLJ Daily E-Mail Alert No. 2,120, August 6, 2010, and notice in the Federal Register, August 24, 2010, Vol. 75, No. 163, at Pages 52185-52209.

Tuesday, October 26

9:00 AM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Sensors and Instrumentation Technical Advisory Committee (SITAC) will hold a partially closed meeting. This meeting will be held on site, and by teleconference. See, notice in the Federal Register, October 12, 2010, Vol. 75, No. 196, at Page 62508. Location: DOC, Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues, NW.

11:00 AM - 12:00 NOON. The Federal Communications Commission's (FCC) Advisory Committee for the 2012 World Radiocommunication Conference will meet. See, notice in the Federal Register: October 6, 2010, Vol. 75, No. 193, at Pages 61756-61757. Location: FCC, Room TW-C305445 12th St., SW.

2:00 - 3:30 PM. The Department of Justice's (DOJ) Antitrust Division will host a presentation titled "Supersize It: The Growth of Retail Chains and the Rise of the Big Box Retail Format". The speaker will be Emek Basker (University of Missouri) one co-author of a paper [PDF] with the same title. For more information, contact Thomas Jeitschko at 202-532-4826 or atr dot eag at usdoj dot gov. Location: Liberty Square Building, 450 5th St., NW.

Wednesday, October 27

12:00 NOON - 1:00 PM. The American Bar Association (ABA) will host a teleconferenced panel discussion titled "Protecting Business Secrets and Key Personnel: How How Far Can Companies Go?". This panel will address USA v. Adobe, et al., D.C. No. 1:10-CV-01629. See, story titled "DOJ Stops Tech Companies' Anticompetitive Hiring Practices" in TLJ Daily E-Mail Alert No. 2,133, September 27, 2010. The speakers will be Melvin Schwartz (Marsh McLennan), Veronica Lewis (Vinson Elkins), and Eric Welsh (Parker Poe). See, notice. Free.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction 91. This auction, which is scheduled to commence on March 29, 2011, pertains to FM Broadcast Construction Permits. See, September 21, 2010, FCC Public Notice (DA 10-1711 in AU Docket No. 10-183) and notice in the Federal Register, October 6, 2010, Vol. 75, No. 193, at Pages 61752-61756.